Citation NR: 9729187
Decision Date: 08/22/97 Archive Date: 08/29/97
DOCKET NO. 96-47 188 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for residuals of an eye
injury.
REPRESENTATION
Appellant represented by: Guadalupe Lopez, Agent
ATTORNEY FOR THE BOARD
Keith L. Salas, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1949 to
March 1950, and from September 1950 to October 1951.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal from a July 1996 determination by the Department of
Veterans Affairs (VA) Houston Texas Regional Office (RO) that
found new and material evidence had not been submitted to
reopen a claim for service connection for residuals of an eye
injury.
It is noted that the veteran and his representative have made
contentions that prior RO and Board decisions were erroneous
and not in accordance with VA regulations. This issue has
been neither procedurally prepared nor certified for
appellate review and is referred to the RO for appropriate
action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in essence, that
VA has continued to reject service medical records as not
constituting new and material evidence based on an
unsubstantiated medical conclusion that an eye injury in
service was transitory and healed without residual disability
prior to separation, and that subsequent deterioration of
vision was not the result of an eye injury sustained in
service.
It is averred that no consideration was given to aggravation
of decreased visual acuity during the veteran’s period of
service and that no medical evidence has been presented to
show that any deterioration in the veteran’s visual acuity in
service was merely reflective of natural progression. It is
contended that VA violated its own regulations with respect
to evaluation of the veteran’s claim, and did not act fairly
and impartially.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that new and material evidence has not been
submitted to reopen the claim for service connection for
residuals of an eye injury.
FINDINGS OF FACT
1. In November 1990 the Board affirmed the prior denial of
entitlement to service connection for residuals of an eye
injury.
2. The evidence submitted since the November 1990 Board
decision is duplicative and cumulative in nature, is not
probative of the issue at hand and, when viewed in the
context of all the evidence of record, both new and old, does
not raise a reasonable possibility of changing the prior
outcome.
CONCLUSION OF LAW
Evidence received since the November 1990 final decision
wherein the Board affirmed the denial of the veteran’s claim
of entitlement to service connection for residuals of an eye
injury is not new and material, and the veteran’s claim for
that benefit has not been reopened. 38 U.S.C.A. §§ 5107,
5108, 7104 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.156(a),
20.1100 (1996)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The evidence which was of record prior to the November 1990
decision wherein the Board affirmed the denial of entitlement
to service connection for residuals of an eye injury will be
briefly summarized below.
On the January 1949 enlistment examination for the veteran’s
first period of service, visual acuity was found to be 20/20
bilaterally. In May 1949 bilateral visual acuity was
reported as 20/30 bilaterally and conjunctivitis was noted.
The following month the veteran sustained third degree on
both eyelids while lighting a gas stove. Uncorrected visual
acuity was 20/40 minus 1 in the right eye, and 20/50-1 in the
left eye. Corrected visual acuity of 20/20 bilaterally was
obtained on maximum refraction. There was one degree of
esophoria at distances. The veteran reported that he had
worn glasses for many years but had broken them recently.
Refractive error was noted. The veteran stated he had been
blind for two hours after the explosion, which had burned his
hair, eyebrows, and eye lashes.
In July 1949 the veteran reported blurring of vision over the
previous two months as well as some irritation.
Conjunctivitis was diagnosed. A medical certificate notes
that the veteran’s eyes were expected to completely recover.
Over the course of the next several days, refractions
revealed varying degrees of diminished visual acuity, and
field testing showed concentric contraction to about 10
degrees in each eye. The fundi were normal, but a small
corneal scar was seen in the right eye at about seven
o’clock. The palpebral fissures were Mongolian type, with
near epicanthus. On separation examination in March 1950,
uncorrected visual acuity was 20/40 in each eye. No
significant abnormalities of the eyes were found.
On recall to active duty in September 1950, the veteran had
no abnormal findings with respect to the eyes other than
uncorrected visual acuity which was 20/29 in the right eye,
and 20/22 in the left. The veteran had no complaints or
treatment with respect to his eyes during his second period
of service. On separation examination in October 1951,
ophthalmoscopic examination was normal, and visual acuity was
20/40 in each eye, corrected to 20/30.
VA examination in August 1952 noted that eyes were externally
normal except for mild scarring of the margin of the right
lid without cosmetic defect. Both eyes were small and widely
set apart. The corneas were clear. Internal examination
noted normal hyperopic, slightly microphthaline eyes.
The veteran was reexamined in September 1952. The examiner
again observed that the veteran had small eyes. There was
marked epicanthus. The examiner was of the opinion that this
was probably due to congenital partial amblyopia. Vision
could not be corrected to better than 20/40 bilaterally.
Retinoscopy only showed a slight refractive error.
Malingering was not thought to be a factor.
An independent ophthalmologic examination was conduction in
January 1953. The veteran’s lids were normal. The
examination was normal except for visual acuity of 20/50
vision bilaterally corrected to 20/40. The diagnosis was
right hyperopic compound astigmatism, left simple hyperopia,
and bilateral amblyopia. The examiner wrote “From the
appearance of his eyes, I feel that this man can see better
than 20/40, although I was not able to prove this with the
mellingering (sic) test.”
A rating decision dated in January 1953 found that the
veteran suffered from a constitutional or developmental
abnormality which is not a disability under the law. The
veteran did not appeal this determination.
A private ophthalmologic report dated in September 1970 was
submitted. Best corrected vision of 20/60 bilaterally was
noted. There was concentric contraction of the visual fields
bilaterally. The only abnormality that could be seen in the
eye was discoloration of the iris. The physician diagnosed
Waardenburg syndrome, a “genetic condition.” The veteran did
report having his eyes and face burned while in the service.
However, the physician found nothing to explain the veteran’s
vision loss.
Based on the foregoing, a rating decision dated in October
1970 continued the denial of service connection. The veteran
was notified of this decision. The veteran submitted a notice
of disagreement from the May 1971 rating decision, and he was
provided with a substantive appeal. However, he never
submitted a substantive appeal.
Lay statements submitted in May 1971 indicated that the
veteran injured his eyes in service and had had defective
vision ever since service. Based on the foregoing, the RO
denied service connection for a visual defect in June 1971.
In May 1980 the veteran submitted lay statements indicating
that he had burned his eyes while in service. A rating
decision in June 1980 found that new and material evidence
had not been submitted to reopen a claim for service
connection for an eye disability. The veteran perfected an
appeal of this decision to the Board.
A January 1981 decision by the Board considered all of the
evidence of record and found that the eye injury sustained by
the veteran in service was transitory and healed prior to
separation, without residual disability. The Board also
found that subsequent deterioration of the veteran’s vision
was not the result of the eye injury sustained in service,
and that the veteran did not have current ocular pathology
consistent with past trauma.
In February 1981 the veteran submitted VA treatment records
including a hospital summary from September 1980. The
veteran was evaluated in the eye clinic for complaints of
seeing dark shadows and streaks, tearing, and difficulty with
night vision in both eyes, and orbital pressure in the right
eye. External examination was within normal limits. The
internal examination was also normal apart from the fact that
both eyes showed marked generalized constriction of visual
field and visual acuity.
In December 1983, the veteran attempted to reopen his claim
for service connection for an eye disability. He submitted
duplicates of three lay statements indicating that he
suffered burns to his eyes as the result of an explosion in
service. In April 1984 the veteran was notified that a claim
for service connection for residuals of an eye injury was
previously denied. The veteran was notified that the
statements submitted were copies of statements previously
considered by the Board.
In July 1984, the veteran once again attempted to reopen a
claim for service connection for residuals of an eye injury.
VA treatment records were obtained from June 1984 to
September 1984. None of the records show treatment of the
eyes. A September 1984 rating decision found that evidence
submitted was not new and material to reopen the claim. The
veteran was notified of the denial in November 1984.
The veteran attempted to reopen his claim for service
connection in June 1986. In July 1986, the veteran was
notified that to reopen his claim new and material evidence
would be necessary.
The veteran refiled a claim for service connection for an eye
disability in January 1987. VA treatment records were
obtained which showed treatment in January 1987 for central
retinal vein occlusion (CRVO). The veteran had 20/60 vision
in the right eye and 20/400 in the left eye. Additional VA
records were obtained which show that the veteran was
hospitalized in late April and early May 1987 for argon laser
panretinal photocoagulation surgery on the right eye. The
diagnoses were ischemic-type CRVO and cystoid macular edema
(CME) of the left eye. The report noted prior bilateral
blepharoplasties with congenital tela canthus.
In June 1989 the veteran submitted duplicate lay statements
to reopen his claim for service connection for an eye
condition. Additional service medical records were obtained
which diagnosed CME and status post CRVO, left eye, stable.
A macular grid was performed. Based on the foregoing, an
August 1989 rating decision found that new and material
evidence had not been submitted to reopen the claim for
service connection for residuals of an eye injury.
The veteran testified before the RO that his vision problems
started with his eye injury in service. The veteran
testified that he was told that if he had visual problems in
the future, the Army would take care of him. A hearing
officer’s decision dated in April 1990 found that new and
material evidence had not been presented to reopen the
veteran’s claim. The veteran perfected an appeal of this
decision.
In November 1990, the Board issued a decision which found
that the 1981 Board decision denying service connection for
residuals of an eye injury was fully supported by the
evidence then of record. The decision found that the
evidence submitted since that decision was cumulative or
referred to more recent care for other left eye problems that
were not of service origin. The decision further found that
refractive error of the eye is a developmental disorder for
which service connection cannot be granted. The veteran was
notified of the Board decision, and of his procedural and
appellate rights. The veteran did not appeal to the Court of
Veterans Appeals. The Board decision became final.
38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1991)
The evidence submitted subsequent to the November 1990
decision wherein the Board denied entitlement to service
connection for residuals of an eye injury will be summarized
below.
In October 1991, VA treatment records from May 1991 to
October 1991 were received in connection with a claim for
service connection for other disabilities. An undated
“problem list” notes decreased visual acuity secondary to
retinal vein occlusion recognized as of August 1989.
In November 1991, additional VA treatment records from
December 1989 to June 1991 were received. These records show
eye treatment from December 1989 to June 1991. These records
continue to show significantly decreased left eye vision.
There is no opinion though, linking the veteran’s eye
disability to service or indicating traumatic origin.
The veteran filed a claim to reopen his claim for service
connection for residuals of an eye injury in June 1996.
Along with the claim, the veteran submitted a document in the
nature of argument dated in May 1996, a copy of the letter
notifying the veteran of the May 1952 rating decision, a copy
of the January 1981 Board decision, and duplicate service
medical records. Based on these submissions, a July 1996
rating decision was issued finding that new and material
evidence had not been submitted to reopen the claim of
entitlement to service connection for residuals of an eye
injury. The decision found that the evidence was duplicative
or cumulative.
In August 1996, the veteran submitted a notice of
disagreement (NOD). Accompanying the NOD was a sheet
summarizing the veteran’s VA appointments from January 1996
to March 1997; a notification of a rescheduled appointment;
and a notification of a lab appointment.
Analysis
A decision, though final as to conclusions based on the
evidence of record at that time, may be reopened if new and
material evidence is submitted. 38 U.S.C.A. § 5108. New and
material evidence means evidence not previously submitted to
agency decision makers which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative or redundant, and which by itself or in
connection with other evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156.
In determining whether new and material evidence has been
submitted, the Board is obligated to review all of the
evidence submitted since the last final denial on any basis,
which in this case is the November 1990 Board decision.
The newly presented evidence need not be probative of all
elements required to award the claim, but need be probative
only as to each element that was a specified basis for the
last disallowance. Evans v. Brown, 9 Vet.App. 273, 284
(1996). However, in order to justify reopening a claim of
service connection on the basis of new and material evidence,
there must be a reasonable possibility that the new evidence
presented, when viewed in the context of all the evidence,
both old and new, would change the outcome. Manio v.
Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski,
1 Vet.App. 171, 174 (1991). It is noted that VA must accept
proffered evidence as presumptively credible. Justus v.
Principi, 3 Vet.App. 510 (1992).
In this case, the evidence submitted by the veteran since the
final Board decision is not new or material. Copies of prior
decisions and a brief are not new or material evidence.
These documents merely show the history of the case, restate
evidence, and make argument. They do not provide a new
factual basis on which to consider the claim.
Service medical records are exact duplicates of records
previously submitted. VA treatment records are cumulative
because they merely show treatment for the same eye
conditions that were of record and considered in the last
Board decision.
The appointment list and notification letter are not material
evidence raising a reasonable possibility of a change in the
prior final decision. The appointment list indicates that
the veteran had additional treatment of his eyes. However,
the evidence does not raise a reasonable possibility of a
change in outcome because the evidence does not provide any
details of the treatment or establish a medical nexus between
the veteran’s current eye disability and the eye injury in
service.
The Board notes that arguments have been presented with
respect to lack of consideration of aggravation of the
veteran’s preexisting eye disorder during service and absence
of medical documentation supporting a conclusion that any
deterioration in the veteran’s visual acuity was merely
reflective of natural progression. The Board notes that the
issue on appeal pertains to new and material evidence to
reopen a previously denied claim of service connection for
residuals of an eye injury.
The additional evidence discussed above has no relevance to
aggravation of any eye disability which may have been present
prior to service as it consists of nonpertinent
documentation, duplicates of previously considered service
medical records for which no aggravation of preexisting eye
disability was found, and post service treatment reports
which have no bearing on incurrence or aggravation of an eye
disability coincident with service.
The Board is of the opinion that there is no duty to assist
the veteran to procure additional VA records in this case.
The United States Court of Veterans Appeals has held in Ivey
v. Derwinski, 2 Vet.App. 320 (1992), that development may be
conducted prior to reopening where there is a showing that
there are outstanding records with probative value. There is
no indication in this case that additional treatment records
will do any more than restate the veteran’s present diagnosis
and course of treatment.
ORDER
New and material evidence not having been submitted to reopen
a claim of entitlement to service connection for residuals of
an eye injury, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988).
The date that appears on the face of this decision
constitutes the date of mailing and the copy of this decision
that you have received is your notice of the action taken on
your appeal by the Board of Veterans’ Appeals.
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